WIXLIB

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 8 of 25Total Pages:(8 of 55)all segments of industry. API’s members are involved in all major pointsof the chemical supply chain—from natural gas and crude oil production,to refinery production of fuels and other products, to service companiesusing chemicals. API’s members are affected by all of EPA’s activitiesunder TSCA, both directly as companies subject to regulation andindirectly as customers of regulated companies. API membersmanufacture and use chemicals subject to the Prioritization and RiskEvaluation Rules. Movant Battery Council International (“BCI”) promotes the interests ofthe battery industry whose members include lead battery manufacturersand recyclers, marketers and retailers, and suppliers of raw materials andequipment. Components used by the industry are subject to regulationunder TSCA, including the Prioritization and Risk Evaluation Rules. Movant Chamber of Commerce of the United States of America is theworld’s largest business federation. The Chamber represents 300,000direct members and indirectly represents the interests of more than threemillion companies and professional organizations of every size, in everyindustry sector, and from every region of the country. The Chamber’smembers include companies in all of the sectors covered by each of theother intervenors—chemicals, coatings, refiners, petrochemicals,petroleum, forestry, wood products, batteries, electronics, energy, andelectricity, among many others. These companies use chemicals subjectto regulation under TSCA, including the Prioritization and RiskEvaluation Rules. Movant EPS Industry Alliance represents manufacturers of expandedpolystyrene (“EPS”). EPS and the chemistries used to produce it aresubject to TSCA jurisdiction, including the Prioritization and RiskEvaluation Rules. Movant IPC International, Inc., doing business as IPC – AssociationConnecting Electronics Industries (“IPC”), is a not-for-profit associationconsisting of 4,200 member facilities that manufacture electronics orsupply equipment and materials to industries manufacturing electronics.The majority of IPC members use chemicals to manufacture products orsell products containing chemicals, but a small percentage manufactureand/or distribute chemicals to electronics manufacturers. Asmanufacturers, distributors and users of chemicals, IPC members are8

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 9 of 25Total Pages:(9 of 55)affected by TSCA rulemaking. The Risk Evaluation and PrioritizationRule proscribe the process under which the chemicals used by ourmembers will be regulated in the future. The development andmanufacture of electronics is directly affected by restrictions on thechemical used to manufacture them and thus effect IPC members. Movant National Association of Chemical Distributors (“NACD”) is anassociation of chemical distributors and their supply-chain partners.NACD’s members process, formulate, blend, repackage, warehouse,transport, and market chemical products for over 750,000 customers.The chemical distribution industry represented by NACD employs over70,000 people and generates 5.14 billion in tax revenue for localcommunities. The products distributed by NACD members are subject toEPA’s TSCA jurisdiction, including the Prioritization and RiskEvaluation Rules. Movant National Mining Association (“NMA”) is a national tradeassociation that represents the interests of the mining industry—includingthe producers of most of America’s coal, metals, and industrial, andagricultural minerals, as well as the manufacturers of mining and mineralprocessing machinery, equipment, and supplies—before Congress, theadministration, federal agencies, the judiciary, and the media. NMA hasmore than 300 members, many of which manufacture, process, and/oruse chemical substances subject to TSCA, including the Prioritizationand Risk Evaluation Rules. Movant Polyurethane Manufacturers Association (“PMA”) is theassociation dedicated to the advancement of the cast polyurethaneindustry. Its members include processors, suppliers and other membersin the cast urethane industry. The chemicals which are used tomanufacture polyurethanes are substances subject to EPA’s TSCAjurisdiction, including the Prioritization and Risk Evaluation Rules. Movant SOCMA – Society of Chemical Manufacturers and Affiliates(“SOCMA”) is the U.S.-based trade association dedicated solely to thespecialty chemical industry. SOCMA’s 200 members produceintermediates, specialty chemicals and ingredients used to develop a widerange of industrial, commercial and consumer products. SOCMA’smanufacturing members all produce chemicals subject to regulationunder TSCA that could be addressed by the Prioritization and Risk9

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 10 of 25Total Pages:(10 of 55)Evaluation Rules, and all of its members could be impacted by EPA’sactions under the rules. SOCMA was actively involved in the legislativeand rulemaking processes leading to issuance of the Prioritization Ruleand the Risk Evaluation Rule, filing comments on the proposed versionsof both. Movant Silver Nanotechnology Working Group (“SNWG”) is anindustry-wide effort to advance the science and public understanding ofthe beneficial uses of silver nanoparticles in a wide-range of consumerand industrial products. Silver nanotechnology is subject to EPA’sTSCA jurisdiction, including the Prioritization and Risk EvaluationRules. Movant Styrene Information and Research Center (“SIRC”) is anonprofit trade association that collects, develops, analyzes, andcommunicates information to guide industry and government on healthand environmental issues associated with styrene and ethylbenzene.Member companies manufacture or process styrene and ethylbenzene.Associate member companies fabricate styrene-based products. Styreneand ethylbenzene are chemical substances subject to TSCA, including thePrioritization and Risk Evaluation Rules. Movant Utility Solid Waste Activities Group (“USWAG”) is responsiblefor addressing solid and hazardous waste and chemical managementissues on behalf of the utility industry. USWAG was formed in 1978, andis a trade association of over 130 utility operating companies, energycompanies and industry associations. USWAG engages in regulatoryadvocacy pertaining to TSCA, among other policy areas. The industryuses substances subject to the requirements of TSCA, including thePrioritization and Risk Evaluation Rules.ARGUMENTI.Movants Satisfy the Standards for Intervention as of RightIn this Circuit, a court shall grant intervention as of right if an intervenormakes a timely motion and can show (1) an interest in the subject matter of theaction, (2) that the protection of this interest would be impaired by the disposition10

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 11 of 25Total Pages:(11 of 55)of this action, and (3) that the interest is not adequately represented by existingparties to the litigation. See Fed. R. Civ. P. 15(d); Fed. R. Civ. P. 24(a); In reSierra Club, 945 F.2d 776, 779 (4th Cir. 1991) (“must show interest, impairmentof interest, and inadequate representation”); Teague v. Bakker, 931 F.2d 259, 261(4th Cir. 1991) (citing Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216(4th Cir. 1976)). These requirements should be interpreted broadly, as “liberalintervention is desirable to dispose of as much of a controversy involving as manyapparently concerned persons as is compatible with efficiency and due process.”Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986).55Although this Court has not resolved the issue, a majority of the courts of appealhas correctly held that intervenors are not required to satisfy the requirements forArticle III standing, so long as they are not seeking additional relief and satisfy therequirements for intervention as of right under Rule 24(a). See e.g., King v.Governor of the State of New Jersey, 767 F. 3d 216, 246 (3d Cir. 2014) (partiesseeking to intervene as of right need not have independent standing so long asanother party with standing on the same side as the intervenor is in the case, citingcase law); accord Town of Chester v. Laroe Estates, 137 S. Ct. 1395 (2017)(requiring standing when intervenor sought relief different from plaintiff). But seeJones v. Prince George’s County, Maryland, 348 F. 3d 1014, 1017 (D.C. Cir.2003). This Court need not resolve the issue, because Movants have Article IIIstanding to intervene here. Movants’ members would have standing (as membersof the regulated community directly impacted by the rules at issue who stand to beinjured by this litigation), the subject of the litigation is germane to the Movants’interests, and no individual member’s participation is necessary for the litigation.See Declaration of Michael P. Walls (Attachment A) (“Walls Decl.”); Declarationof Jim McCloskey (Attachment B) (“McCloskey Decl.); Hunt v. Wash. State AppleAdvert. Comm’n, 432 U.S. 333 (1977).11

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 12 of 25Total Pages:(12 of 55)Here, Movants satisfy these requirements, and this Court should grant thisMotion so that they may protect their important interests.A.The Motion to Intervene is TimelyPetitioners in this consolidated case filed their petitions for review onAugust 10 and August 11, 2017. This motion is therefore timely because Movantsfiled within the time allotted by the Federal Rules. Fed. R. App. P. 15(d)(requiring parties to move for intervention within 30 days of the filing of a petitionfor review) and 26(a)(1) (when, as here, a deadline lands on a weekend, the filingis on the “next day that is not a Saturday, Sunday, or a legal holiday”). In addition,allowing Movants to intervene will not, as a practical matter, disrupt theproceedings or prejudice the parties because they are seeking to join this case at theearliest possible stage. Alt v. EPA, 758 F.3d 588, 591 (4th Cir. 2014) (timelinessbased on “how far the underlying suit has progressed” and whether the otherparties would suffer “prejudice”).B.Movants Have a Significant Protectable Interest in the Subject ofthe PetitionsThe Federal Rules do not define what “interest” is required to supportintervention of right. In the Fourth Circuit, for an interest to be “protectable,” itmust be a “significantly protectable interest.” Teague, 931 F. 2d at 261 (findingsignificant interest because the intervenors “stand to gain or lose” by outcome); seealso Sierra Club, 945 F.2d at 779 (environmental group had protectable interest in12

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 13 of 25Total Pages:(13 of 55)subject matter of waste management company’s challenge to state rule restrictingnew waste treatment, storage or disposal facility); United Guar. Residential Ins.Co. of Iowa v. Phila. Sav. Fund Soc’y, 819 F. 2d 473, 475 (4th Cir. 1987) (interestin insurance rights sufficiently significant).Here, unquestionably, Movants have a significantly protectable interest inthe subject matter of these consolidated Petitions. Movants’ membersmanufacture, process, distribute, or use chemicals that are essential to theirindustries and businesses and are subject to the Risk Evaluation Rule. See, e.g.,Walls Decl. ¶¶ 5. 20(a)-(p); McCloskey Decl. ¶¶ 4-5, 8. After determining thepriority of chemicals for evaluation, EPA will follow the process and criteria in theRisk Evaluation Rule for high priority chemicals to determine whether thechemical presents an unreasonable risk of harm to health or the environment underany foreseeable conditions of use, the result of which determination could lead torestrictions on such chemical’s use, up to and including a ban. These sameprocedures and criteria must be followed when manufacturers request an EPAconducted risk evaluation of any existing or new chemical substance.Accordingly, Movants potentially “stand to lose” access to chemicals thatare at the core of their operations, or to have that access restricted, depending uponthe results of EPA’s evaluations under the Risk Evaluation Rule. Likewise,Movants could lose millions of dollars and years of research invested in a13

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 14 of 25Total Pages:(14 of 55)chemical, if an EPA risk evaluation ultimately results in restrictions. Further,enormous uncertainty could be created if the Petitioners were to prevail and wouldaffect users’ confidence in planning new uses for existing substances. Thus, howEPA conducts these risk evaluations, including what conditions of use of aparticular chemical EPA must assess during these evaluations, are crucial toMovants. Movants have a direct interest in Petitioners’ challenge, which seeks tooverturn the process set by the Risk Evaluation Rule and expand the conditions ofuse that EPA would be required to consider in a risk evaluation.Movants have also demonstrated the significance of their direct andprotectable interest in the Risk Evaluation Rule by participating in the rulemakingthat culminated in the final rule.6 When a group seeking intervention hadparticipated “in the administrative process leading to the governmental action,” thegroup has a direct and substantial interest in the litigation. Michigan State AFLCIO v. Miller, 103 F.3d 1240, 1245-46 (6th Cir. 1997).In sum, Movants have the significant interest needed to intervene.6See, e.g., Walls Decl. at ¶ 13; McCloskey Decl. at ¶ 6. Other examples can befound at www.regulations.gov, docket number EPA–HQ–OPPT–2016–0654.14

Appeal: 17-1926C.Doc: 24-1Filed: 09/13/2017Pg: 15 of 25Total Pages:(15 of 55)The Disposition of These Consolidated Petitions Could Impair orImpede Movants’ Ability as a Practical Matter to Protect TheirSignificant Interests in the Risk Evaluation RuleFurther, resolution of these consolidated Petitions could impair or impedeMovants’ ability to protect their interests in the Risk Evaluation Rule. In thisCircuit, it is sufficient that a judgment “would impair or impede the Intervenors’ ability to protect their interest in the subject matter of th[e] litigation.”Teague, 931 F.2d at 261 (the intervenors’ significant interest in recovery would beimpaired even if still retained rights of action and potential effect was contingent inpart on other litigation); United Guar., 819 F. 2d at 475 (sufficient impairment ifdisposition of the pending case “might well” deprive the proposed intervenors of asignificant insurance benefit). Moreover, it is sufficient that the outcome could “asa practical matter” impair or impede the proposed intervenor’s interests in aseparate administrative proceeding. Sierra Club, 945 F.2d at 779 (if court were toenjoin certain sections of regulation, it “will impede Sierra Club’s ability to protectits interest in the administrative proceeding”).As detailed above, Movants’ members manufacture, process, distribute, useand otherwise rely on chemicals in the conduct of their businesses, and Petitionersseek a court order that would require EPA to change the process and criteriaestablished in the Risk Evaluation Rule to make the process more onerous forMovants in order to impose additional restrictions on how chemicals are15

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 16 of 25Total Pages:(16 of 55)manufactured, processed, distributed and used. Movants’ interests in sustainingtheir members’ operations could be impeded or impaired if the disposition of thisaction results in the changes in the Risk Evaluation Rule that Petitioners arepursuing here. Only if this Court allows Movants to participate in this action willMovants be able to protect fully their interests in the evaluation approach in theRisk Evaluation Rule.D.Existing Parties Do Not Adequately Represent Movants’ InterestsThe existing parties do not adequately represent Movants’ interests in thiscase. In general, the Supreme Court has held that a movant seeking to intervene asof right need only show that representation of its interests “may be” inadequate,and the burden of showing so is “minimal.” Trbovich v. United Mine Workers ofAm., 404 U.S. 528, 538 (1972); see Sierra Club, 945 F.2d at 779-80 (citingTrbovich for adequacy standard, emphasizing that this requirement is met ifapplicant shows “representation of its interest may be inadequate”) (emphasis inoriginal); Teague, 931 F.2d at 262 (citing Trbovich for adequacy standard); seealso United Guar., 819 F.2d at 475 (same). In Sierra Club, for example, this Courtfound an organization that supported the state agency’s defense of its regulationwas not adequately represented by the preexisting parties, because while the stateagency ostensibly represented “all of the citizens,” the organization represented“only a subset of citizens concerned” with the subject matter of the action and did16

Appeal: 17-1926Doc: 24-1Filed: 09/13/2017Pg: 17 of 25Total Pages:(17 of 55)“not need to consider the interest of all citizens.” 945 F.2d 780 (reversed denialof intervention as of right, even though interests of Sierra Club and state agency“may converge”). The same is true here. See also, Sierra Club v. EPA, 557 F.3d401 (6th Cir. 2009); Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir.2003); Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998);Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41-44 (1stCir. 1992). But see Stuart v. Huff, 706 F.3d 345, 351 (4th Cir. 2013).7Here, Movants are not represented at all by the Petitioners, who are directlyadverse to Movants. Nor do Respondents adequately represent Movants’ interests,as EPA does not represent the distinct private interests of Movants and theirmembers. Movants exist in part to ensure that the companies they represent areable to manufacture, process, distribute, or use chemicals as needed, and therebyoperate the nation’s manufacturing and energy facilities, preserve and create jobs,and produce successful businesses, all in an environmentally sound manner.7Stuart involved intervention in a district court case concerning theconstitutionality of a state statute where intervention could have significantlyincreased the burdens on the government and the court. Id. at 350-51 (“motions tointervene can have

IPC International, Inc., doing business as IPC - Association Connecting Electronics Industries, National Association of Chemical Distributors, National Mining Association, Polyurethane Manufacturers Association, Silver . Movants are associations that represent industries directly regulated and affected by the Risk Evaluation Rule, because .